News Update - November 1, 2008
By Alan Lee, Esq.†‡
Recent Board of Alien Labor Certification Appeals (BALCA) Decisions
1. BALCA recently upheld a U.S. Department of Labor Certifying
Officer’s (CO) rejection of a labor certification based on
the determination that the employer did not recruit in good faith
by only making phone calls to applicants and not sending letters.
Although the regulation that governs labor certifications does not
explicitly state a “good faith” requirement in regards
to recruitment, such a requirement is implicit. Therefore, an employer
must do more to contact applicants than leave messages on answering
machines. BALCA also found that readvertising the position was not
an adequate remedy for a lack of good faith recruitment.
BALCA also upheld the CO’s rejection because it found that
the employer did not prove that U.S. applicants were rejected solely
for lawful job-related reasons or that the job was open to any qualified
U.S. worker. The CO found that the employer rejected its U.S. applicants
for lacking experience not specified as a job requirement in the
ETA Form 9089 and it failed to establish that the immigrant applicant
had such experience prior to being hired.
2. In another determination, BALCA upheld the CO’s rejection
of labor certification for an ethnic singer/entertainer due to the
employer’s failure to establish that the position was full-time.
The definition of “employment” for the purposes of labor
certification is “permanent full-time work by an employee
for an employer other than oneself.” 20 C.F.R. §656.3.
Therefore, an employer has the burden of demonstrating through documentation
that the position is both permanent and full-time. Reasonable documentation
that can be requested by a CO includes (but is not limited to):
position description, payroll records, resumes of former employees
and copies of job advertisement of similar positions not associated
with labor certification applications place in the last three years.
In this case the employer argued that the position, although only
20 hours, was full-time because the duties of the job of an entertainer
are performed in the context of scheduled performances. The employer
provided documentation which included the required hours and copies
of its newspaper listings for this position. BALCA found that the
CO had properly rejected the labor certification because the fact
that the job is as an entertainer does not provide a compelling
reason to find that the position is a full time job and the employer
failed to provide adequate documentation.
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